"[Meister] is a veteran police officer, one skilled in investigating
illegal drug transactions. [Meister] trusted the defendant because the
defendant had proven himself to be reliable in terms of information
provided and in terms of a willingness to undertake personal risk, which is
involved when you make a controlled buy from people who pack guns * * *
and that he was willing to undertake those personal risks to further the
cause of law enforcement.

"A person does not have to be a public employee to violate a public
trust. [Defendant] had spoken to Meister before about Alvaro as being a
person deserving of great scrutiny by the police. Although Meister had not
authorized [defendant] to undertake any private enforcement action,
[defendant] had baited the hook with Alvaro's name and reputation and
Meister bit.

"* * * * *

"* * * [Defendant] told the made-up story about being the object of
an assassination attempt at Alvaro's hands in light of [defendant's]
somewhat disclosed role in Salem as an undercover drug informant. The
Manufacturing of Controlled Substance offense was committed in a motel
room paid for by Oregon's taxpayers courtesy of [Meister's] concern for the
safety of the defendant and Mr. Chavez from the would-be assassins who
were still at large.

"[Defendant] preyed on the trust that Meister had given him and
thereby secured the private room in which the Manufacture of the
methamphetamine occurred. Specifically, the funds that paid for the motel
room came from the local police budget that's dedicated to help capture
people engaged in unlawful drug activity. While the manufacture could
have occurred anywhere, the fact is that it occurred in a location made
possible by [defendant's] breach of the trust, the public trust that had been
given to him only because of his duplicity and cunning over the course of
six months of dealings with Meister.

"It wasn't just a matter of the taxpayers providing lodging. The
taxpayers provided a secret location at which the crime of Manufacture of a
Controlled Substance could occur. A secret location in a different town
than where [defendant] lived. The defendant knew that Alvaro would not
like what happened.

"[Defendant] testified that he feared for his family's safety in
Washington County but he didn't make any phone calls to do anything about
that. What [defendant] really feared was [Alvaro's] henchmen coming to
Waldport to find him. The defendant was so apprehensive that he even
reported some bad guys who might have been scouting the first motel room,
so he got Meister to get him a second motel room at a different place.
[Defendant] sought and got a secure location to consolidate the proceeds of
the Robbery by a breach of the public trust.

"Without the trust he had gotten from Meister, [defendant] and his
gang would not have gotten a lodging through Meister and the Lincoln
County Drug Team funds. The defendant argues that he was afforded
protection as a crime victim. He wouldn't have gotten the protection he did
had he not had the relationship with Meister that he did."

The court also found that defendant's work as an informant had been motivated by deceit
from its inception:

"[Defendant] had purposely earned the reputation as a trusted
informant for two very selfish reasons. First, he wanted to know who the
local undercover drug cops were and how they operated so he'd know what
to look out for. Second, he wanted to get on the good side of the police so
he could have an escape hatch, a plausible reason for being involved in drug
trafficking in case he ever got caught in the criminal enterprise that he was
in the process of creating and masterminding. If exposed, he wanted to be
able to try to convince [Meister] and the other drug police that he was
acting to further some legitimate undercover detective work of his own."

With respect to defendant's use of a steak knife to cut the
methamphetamine, the court said:

"The second aggravating factor for this crime is the use of a weapon.
* * * [OAR 213-008-0002(1)(b)(E)] does not say that a person must
intimidate another person with a weapon or slash out at another person with
a weapon or cause injury with a weapon in order for the aggravating factor
to apply.

"The defendants used a knife to manufacture the methamphetamine.
The factor applies."

Defendant appeals from the ensuing judgment in which the trial court
imposed a durational departure sentence on his conviction for manufacture of a controlled
substance. That conviction fell into gridblock 8-I of the sentencing guidelines grid,
carrying a presumptive range of 16 to 18 months' imprisonment. The court could impose
a durational departure sentence of up to double the maximum presumptive prison term
only upon finding substantial and compelling reasons to depart. OAR 213-08-0003.
Defendant argues that neither of the factors on which the trial court relied was sufficient
to justify the durational departure sentence it imposed. The state concedes that the trial
court erroneously applied the "use of a weapon" factor, but it argues that the trial court's
independent finding that defendant violated a public trust justified the departure sentence.

At the outset, we accept the state's concession that the trial court erred in
applying the "use of a weapon" factor to justify a departure sentence. Defendant used a
steak knife to cut methamphetamine. Although the knife could be used as a weapon,
defendant did not use it to threaten or injure anyone. In State v. Harris, 174 Or App 105,
25 P3d 404 (2001), we considered a sentencing court's authority to impose a gun
minimum sentence under ORS 161.610(2), based on the "use or threatened use of a
firearm * * * during the commission of a felony." The defendant had threatened to "beat
the victim with the rifle." Harris, 174 Or App at 107. We applied ordinary statutory
construction methodology to determine the meaning of "use," a word that the legislature
had not defined. Although "use" has several possible meanings, we concluded that
statutes concerning weapons tend to employ the term narrowly. Id. at 110. We rejected
the state's argument that "use of a firearm" refers to "any use for any purpose." Id. at 112
(emphasis in original). We concluded that use or threatened use of a firearm refers "to
discharge or threatened discharge." Id. In the absence of evidence that the "defendant
discharged or threatened to discharge" the rifle, we held that no gun minimum could be
applied, despite the fact that the defendant had threatened to use the rifle as a club. Id. at
113.

By force of similar reasoning, although the legislature has not defined "use"
for sentencing guidelines departure factor purposes, it makes little sense to conclude that
it intended to authorize departure sentences for "use" of a weapon as something other than
a weapon. Because defendant's use of the steak knife did not satisfy that definition, the
trial court improperly relied on that departure factor in imposing sentence.

However, as noted, the court found that defendant's violation of a public
trust constituted a "separate and distinct basis" for departure. Accordingly, the court's
imposition of a departure sentence is subject to affirmance unless the court also erred in
concluding that defendant's offense involved the violation of a public trust. State v.
Wolff, 174 Or App 367, 371, 27 P3d 145 (2001). We turn to that issue.

Defendant advances three arguments in support of his contention that the
trial court erred in concluding that his crime involved the violation of a public trust. First,
he contends that, in his role as a police informant, he was a mere "stool pigeon" and that
there was no evidence that "the police at any time placed any special trust in [him]
because of his volunteer work as an informant." Second, defendant contends that, even if
the police did trust him, that trust did not constitute a public trust within the meaning of
OAR 213-08-0002(1)(b)(F). Third, defendant asserts that, because the crime of
manufacturing a controlled substance could have been committed "anywhere," there was
nothing about the offense itself that indicated defendant used or took advantage of any
public trust in order to commit it.

Defendant's first argument challenges one of the trial court's findings of
fact. Contrary to defendant's characterization of his relationship with the police, the trial
court found that defendant was "a trusted informant, an agent of the police in this
county." That finding is supported by evidence in the record. Defendant explicitly
agreed to assist law enforcement officials in exchange for specified benefits and, in doing
so, to comply with certain restrictions and obligations. Until he was apprehended,
defendant earned the trust of the police by engaging in six controlled buys and in helping
secure a search warrant that led to a criminal prosecution in Marion County. In doing so,
he risked his own personal safety. That evidence supports the trial court's finding that
defendant was a trusted police agent.

Second, and alternatively, defendant argues that the trust that the police
placed in him was insufficient as a matter of law to constitute a public trust. He relies on
our decision in State v. Reid, 140 Or App 293, 296-97, 915 P2d 453 (1996), for the
proposition that, as used in OAR 213-08-0002(1)(b)(F), the term "public trust" is limited
to the traditional concept of abuse of authority by a public official. Defendant
misunderstands the holding of Reid. In that case, the defendant was convicted of several
crimes involving the sexual abuse of his 12-year-old daughter. The trial court imposed an
upward departure sentence based in part on its finding that "[a]ll human beings deserve to
be treated with respect by all other human beings, and particularly children and
particularly your own children." Id. at 297 n 3. We agreed with the defendant that the
reasons the court gave for departure did not support a finding that the defendant had
violated a public trust. We noted that the commentary to the rule furnishes the following
example of its application:

"EXAMPLE: A local government employee who has been
appointed to serve as a trustee on behalf of a number of elderly clients
embezzles funds from the trust accounts. This offender has violated not
only this trust relationship with the victims, but has also abused the
authority vested in him as a public servant. Consequently, an aggravated
sentence would be appropriate."

"At the time the legislature enacted OAR [213-08-0002(1)(b)(F)], it
had before it the commentary. That commentary indicates that the factor
was meant to capture the 'traditional' concept of public trust, as defendant
argues. However, the state is correct that a sentencing court is not limited
to the listed aggravating factors in imposing departure sentences.
Nonetheless, if a court, in referring to breach of a 'public trust' as a basis for
departure intends to expand the traditional understanding of 'public trust,' it
must define the scope of the 'trust' and explain why it is properly viewed as
'public' rather than private. In all events, a court cannot simply denominate
as a 'public trust' the expectations that society has about how its members
should behave toward each other."

Reid, 140 Or App at 296 (footnote omitted).

In this case, defendant was not a public servant in the ordinary sense. His
undertaking was limited in scope and may not have fit into the "traditional" concept of a
public trust as illustrated by the guidelines commentary and as elaborated on in Reid.
Even so, by carefully defining the trust that defendant violated in a manner demonstrating
the "public"--that is, the quasi-official--nature of that trust, the trial court satisfied the
criteria described in Reid for an expanded conception of a public trust. The trial court
explained that defendant had agreed to assist law enforcement officials in the
performance of law enforcement activities and that, after engaging in those endeavors for
some time, defendant violated the trust that those officials had come to place in him by
lying about the purported assassination attempt. In turn, that deception led to defendant's
placement in a motel room at public expense, where he engaged in additional conduct that
was contrary to his agreement with those officials.

The court's findings more than adequately demonstrate that the trust reposed
in defendant properly can be characterized as "public." The court emphasized defendant's
status and activities as a trusted agent of publicly employed police officers, and the fact
that the room in which defendant carried out his crime was rented as a consequence of
defendant's engagement in that capacity, as well as at public expense. Conversely,
nothing in the trial court's findings reasonably can be viewed as describing circumstances
that commonly occur among private persons carrying out private endeavors. Stated
another way, the court did not rely on defendant's conduct of manufacturing
methamphetamine or, more generally, violating the law--conduct that, when carried out
by a private person, does not violate a public trust for the purpose of OAR 213-08-0002(1)(b)(F). Rather, the trial court relied on defendant's having engaged in that
conduct despite, and contrary to, his agreement to act as the agent of the police officers
and his doing so, moreover, at public expense. We conclude that the trial court
adequately defined the scope of the trust at issue in this case and explained why it is
properly viewed as public rather than private.

1. One of defendant's accomplices, Spinney, told the police that she had
observed the encounter and that, contrary to defendant's revised story, defendant and a
companion had held the other two men at gunpoint.

"(1) Subject to the provisions of sections (2) and (3) of this rule, the
following nonexclusive list of mitigating and aggravating factors may be
considered in determining whether substantial and compelling reasons for a
departure exist:

"* * * * *

"(b) Aggravating factors:

"* * * * *

"(E) Use of a weapon in the commission of the offense.

"(F) The offense involved a violation of public trust or professional
responsibility."

3. Although it is not entirely clear, defendant's argument may reflect a
misunderstanding of the relationship between the elements of an offense and the
particular circumstances of its commission that justify a departure. A factual aspect of a
crime that is a statutory element may not be used as an aggravating factor to support a
departure unless "the criminal conduct constituting that aspect of the current crime of
conviction is significantly different from the usual criminal conduct captured by the
aspect of the crime." OAR 213-008-0002(2). For that reason, aggravating factors usually
are not captured by a statutory element of the crime of conviction. Accordingly, the fact
that the location at which defendant manufactured methamphetamine is not an element of
the crime he committed does not establish that that location is immaterial to the
determination of whether the crime involved a breach of a public trust.